Lawyer’s Claim He Did Not Receive Advance For Expense From His Client

02 Jun Lawyer’s Claim He Did Not Receive Advance For Expense From His Client

Supreme Court 13. Department Of Law 2016/2647 E., 2016/12131 K.

At the end of the trial of the case for the cancellation of the appeal between the parties, a call paper was sent to the concerned parties after the trial by the defendant’s lawyer for the provision given for the partial acceptance and partial rejection of the case due to the reasons written in the decree, without trial by the plaintiff’s lawyer. On a certain day, the hearing was started with the arrival of the acting counsel … and the plaintiff Noble …and after the oral statements of the present counsel and the party were heard, they were left for another day for the verdict. This time it was determined that the appeal was within the duration of the petition and the file was examined, the need was discussed and considered.

DECISION

The plaintiff demanded that the fee to be paid in accordance with the lawyer’s fee agreement arranged between the defendants and murisi was not paid, was dismissed as unfair, and that the execution proceedings initiated for the collection of the receivables were objected to, and that the objection be cancelled and 40% compensation be decided.

The defendants rejected the case, arguing that their Muris had no legal capacity.

The decision given by the court on the rejection of the case because Muris had no license to act on the date of the contract was impaired by the decree no.2012/2583 based on 2012/8048 dated 7.2.2013, it was decided by the court to accept the case partially and reject it in accordance with the injunction; the verdict was appealed by the plaintiff and the defendants.

1-in accordance with the articles in the file, the evidence on which the decision is based and the reasons required in accordance with the law, and in particular the lack of a fault in the discretion of the evidence, all other appeals of the plaintiff and the defendants must be rejected.

2-173/2 Of The Law Of Attorney. in the article, ” All Taxes, Duties and expenses necessary for the execution of the work deposited with the lawyer or to obtain the result after the work is done are under the responsibility of the business owner and shall be paid by the lawyer at the first request to the lawyer or where necessary. In order for these expenses to be made by the lawyer, sufficient advance must be given by the owner of the business.”In accordance with this provision, all costs necessary to see the work should be considered as a presumption that the business owner paid the lawyer at the beginning of the work, and the lawyer who claims otherwise, in other words, that his client did not receive an advance for the costs, should be considered to prove this claim. In the case in question, the plaintiff lawyer does not fulfill this proof obligation on “expenses not taken at the beginning of the work”, while it should be accepted that the costs related to the cases are given to the lawyer at the beginning of the work, the court’s decision to include the trial expense of TL 1,461.90 in the court order subject to follow-up

3-the plaintiff made execution proceedings against the defendants who are the heirs of Melahat E… for the collection of the portion not paid by the defendants because of the legal service provided to the defendants murisine, and requested the cancellation of the objection and denial compensation upon appeal. The court decided to cancel the appeal with the partial acceptance of the case and to collect 40% execution denial compensation of TL 12,431.90,which is the unacceptable portion of the claim, from the defendant’s heirs. Article 67/3 of the IIK provided that “if the objector is the Guardian, guardian or heir, the provision for compensation against the debtor is subject to the Subut of bad faith”. In the concrete case, the claim that the defendant objected to the pursuit in bad faith and could not be proved. In this case, while the request for execution denial compensation by the court should be rejected, the provision in written form is against the procedure and the law and is a cause of disruption.

Conclusion: it was unanimously decided on 03/05/2016 to reject all other appeals of the plaintiffs for the reasons described in the first paragraph above, to annul the decision for the benefit of the defendants for the reasons described in the second and third paragraphs, to pay the trial attorney’s money of TL 1350,00 from the plaintiff to the defendants, to pay the fees of TL 141.60 received in advance to the plaintiff, to return the fees of TL 387.10 received